Hursh v. Crook
| Decision Date | 09 July 1956 |
| Docket Number | No. 2,No. 45073,45073,2 |
| Citation | 292 S.W.2d 305 |
| Parties | Lanta HURSH, Mary B. Roddy, Ben F. Crook and Lee Jarvis Crook, Respondents, v. Laura CROOK, individually and Laura Crook, Executrix, Appellant |
| Court | Missouri Supreme Court |
Delton L. Houtchens, Clinton, for appellant.
Belisle & Harris, John M. Belisle, and Morran D. Harris, Osceloa, for respondents.
BOHLING, Commissioner.
This is a will contest involving the title to real estate. The sole issue presented was whether the signatures of the testator and the witnesses to the will were their actual and genuine signatures. The verdict and judgment was against the validity of the will. Proponent has appealed and contends that the verdict is not supported by any substantial evidence and that the court erred in the admission and exclusion of certain evidence.
Lee E. Crook, the testator, died March 16, 1953, at the age of 83. Mrs. Crook was then 55. He had practiced law at Osceola, Mo., for many years. He was twice married. Contestants, Lanta Hursh, of Kansas City, Kan., Mary B. Roddy, of Lansdowne, Pa., Ben F. Crook, of near Osceola, Mo., and Lee Jarvis Crook of New Orleans, La., are children of his first marriage. His first wife died September 19, 1918. On March 25, 1923, he married Laura Crook, who, as an individual and executrix, is proponent. Contestants and proponent are testator's only heirs at law.
All of Mr. Crook's children attended his funeral, March 19, 1953, some having arrived prior to his death. Mr. and Mrs. Hursh, Lee Jarvis Crook, Mary Roddy, Laura Crook, the widow, and Edwin W. Mills, the prosecuting attorney, went to Mr. Crook's office the day following the funeral to determine if Mr. Crook left a will. We understand he had a one-room office, having a fireproof vault or safe, roll-top desk, tables and other furniture. His papers were not kept in an orderly fashion but were scattered about his office, on top of furniture, in pastboard boxes, sacks, pigeonholes in his roll-top desk and elsewhere. Mr. Mills testified he was there for about two hours in the afternoon. Mrs. Crook testified they made a pretty thorough search of the safe and top of the roll-top desk. Mrs. Roddy testified they took every paper out of the safe and found a number of Government bonds, some in the names of Mr. and Mrs. Crook, and others in the name of Mr. Crook which she listed. Mrs. Crook testified they found $1,700 in Government bonds of Mr. Crook in the safe. Mrs. Roddy stated they examined each and every article on the desk, in the pigeonholes and in the drawers of the desk; and also looked under the desk; that they were there all day, morning and afternoon, and that they concluded there was no will. This resulted in the taking out of letters of administration of an intestate person's estate, and Mrs. Crook was appointed administratrix of the estate of Lee E. Crook, deceased.
Mrs. Crook testified that on May 16, 1953, she again went to the office preparatory to moving her husband's effects; that the lower right-hand drawer of his desk was a single drawer but had the appearance of being two drawers, and there were 'no pulls on either the top or the bottom of this partition'; that she had never looked in that drawer; that she took the upper drawer out, then pushed the lower drawer out, and found 'an old leather collapsible filing case,' or portfolio, with a sealed envelope in it with the notation 'Last Will and Testament of Lee E. Crook.' She took the envelope to Probate Judge George Anderson's office and they went to Mr. Mills' office. Mr. Mills opened the envelope and in it was the will here involved.
Mrs. Roddy testified that on March 19, 1953, when they went to Mr. Crook's office to search for a will: 'I know that there were no portfolios, there was nothing of that kind in the desk, I remember that very distinctly.'
The will was admitted to probate and Mrs. Crook was appointed executrix on May 16, 1953. Ralph P. Johnson was appointed administrator pendente lite.
The alleged will was 'Defendant's Exhibit 3.' It first directs the payment of testator's just debts, funeral expenses, etc., out of his personal estate. Testator next gives to each of his children, naming them, the sum of $1.00. Testator next devises, bequeaths and wills the residue of his estate, real, personal and mixed, to his wife, Laura E. Crook, to be her property absolutely. The next paragraph of the will provides: '* * * that any one or more of my heirs who takes legal steps to change the terms of my will or in anyway contest or litigate the validity of this instrument, forfeits any and all rights and legacies thereunder.' Testator next appointed his wife executrix, with the request she be permitted to serve without giving bond. The will is dated November 11, 1946, and purports to be executed by 'Lee E. Crook' as testator and by 'Herman Pufahl' and 'Waldo P. Johnson' as attesting witnesses.
There was testimony that Waldo P. Johnson and Herman Pufahl, lawyers living, respectively, at Clinton and Bolivar, Mo., were in Osceola attending court on November 11, 1946. They predeceased Mr. Crook. Mr. Johnson died January 20, 1952. Mr. Pufahl died March 6 or 7, 1953.
Mrs. Crook, Mr. Mills and Judge Anderson testified that the signatures of the testator and attesting witnesses appeared clear when Mr. Mills took the document out of the sealed envelope, and not blurred or smeared as at the time of trial. The second sheet of the will has two or three holes caused by the paper being scorched. Mr. Mills was of opinion something damp had caused the ink to smear. Charles Scott, an examiner of questioned documents, contestants' witness, stated when he received the will the signatures of the attesting witnesses were smeared, which could be the result of something accidental like a 'sweaty arm,' and made his work more difficult; that the 'Lee E. Crook' signature was not smeared when he received it, but after he returned it that signature 'had been smeared,' and that now there were holes in the second sheet.
Mrs. Crook testified that the smears on the signatures first appeared when contestants returned the will after having it examined by Mr. Scott. Scott testified it was returned in the condition in which he received it. Judge Anderson testified contestants sought and secured an order of court to remove the will for the purpose of examination; and, when returned, it was 'just like it was when it was taken out.' Mrs. Crook testified she secured the will and took it to her cabin. About 6:00 p. m. she walked to the mail box, about a quarter of a mile. When she returned, the house had been ransacked and the will was on the cookstove and the second page was scorched. She returned it the next day, having it about sixteen hours. Judge Anderson testified that Mrs. Crook, on a Tuesday, wanted to take the will home with her and he refused her request. She returned in a short time and stated Mr. Mills would stand responsible and she wanted to send it "to an expert to have it tested." He then got it from his lockbox in the bank and gave it to her. It was in the same condition it was when he first saw it. She returned it the following Saturday, and it was then in the condition it is now. Mrs. Crook again secured the will and testified she sent it to Washington, D. C. Judge Anderson testified that this time she signed a receipt reading:
Mrs. Crook testified that she put receipts and other important papers in the fourth drawer of a chiffonier at the home; that on May 18, 1953, two days after finding the will, she found a sealed envelope in the drawer with 'Mrs. Laura E. Crook' written on it by Mr. Crook. The envelope contained a six-page handwritten letter dated 'Mar. 3, 1953,' and addressed to her thus: 'Sweetheart.' She testified that the letter was in the handwriting of Mr. Crook. Cleo Cauthon, Edwin W. Mills, Glen E. Toalson, Josephine Carroll, and perhaps other of proponent's witnesses, testified that in their opinion the letter was in Mr. Crook's handwriting. Proponent offered the letter in evidence as bearing on Mr. Crook's mental condition and the objects of his affection 'and not for the truth of the matters stated therein.' The letter is 'Defendant's Exhibit 4.' The letter mentions their approaching wedding anniversary; speaks of the assistance, service and loyalty of Mrs. Crook to the writer; that he had made a will, witnessed by Herman Pufahl and Waldo Johnson, on November 11, 1946, giving her all his property; that he had been fair to his children; that 'Billie' [Ben F.] needed an operation and for her to sell land owned by his mother; and that Billie should do better since he was out of the asylum.
Mrs. Crook, George Anderson, Edwin W. Mills, Cleo Cauthon, Aubrey Park, and other witnesses testified that Mr. Crook was at all times of sound mind. There was testimony by Mrs. Crook and other witnesses to the effect that Mr. Crook had great affection for his wife.
Contestants never questioned Mr. Crook's mental soundness or indicated that he had been subjected to undue influence. When the subject of Mr. Crook's affection for his wife first came up, contestants stated it was not an issue in the case; and when inquiry was first made concerning Mr. Crook's mental soundness, contestants stated there was no question about his mental capacity.
Proponent had a number of lay witnesses who testified with respect to the different signatures on the alleged will, expressing their opinion that the signatures were genuine. Space will not permit the detailing of all of this testimony.
With respect to the signature 'Lee E. Crook': Mrs. Crook testified: 'It is absolutely the genuine signature of Lee E. Crook.'
Cleo Cauthon, who had served eight years as circuit clerk and ex officio recorder: 'Well, I would say it was.' He stated that Mr. Crook 'always sort of...
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